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specialist Tax Court, and it is in this context that the question of due deference by the appeal court arises.

In National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town and Others 2003 (3) SA 1 (CC) at paras [30] and [31], Ngcobo J said of the Labour Appeal Court (‘the LAC’):

‘[30] … The LAC is a specialised court, which functions in a specialised area of law. The LAC and the Labour Court were established by Parliament specifically to administer the LRA. They are charged with the responsibility for overseeing the ongoing interpretation and application of the LRA and development of labour relations policy and precedent. Through their skills and experience, Judges of the LAC and the Labour Court accumulate the expertise which enables them to resolve labour disputes speedily. [31] By their very nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organise their affairs accordingly. They affect our economy and labour peace. It is in the public interest that labour disputes be resolved speedily by experts appointed for that purpose. This Court will therefore be slow to hear appeals from the LAC unless they raise important issues of principle.’ In Khosis Community, Lohatla v Minister of Defence 2004 (5) SA 494 (SCA) at para [11], Harms JA said the following in the context of land claims disputes:

‘As far as the majority judgment is concerned, reference has already been made to the deference due by a higher court to the findings of a lower court. That obligation is particularly strong where the lower court is a specialist court which is called upon to make value judgments, as in the present instance. Although we are entitled and obliged to revisit the issues, the question remains whether it can be said that the lower court was wrong and not merely that there is some scope for disagreement.’ And in Kwalindile Community v King Sabata Dalindyebo Municipality and Others 2013 (6) SA 193 (CC) at para [46], Moseneke DCJ said the following in the context of a land claim dispute:

‘Section 34(5) confers this power only on the land claims court. It is that court that may hear, dismiss or grant the application or make any other order it deems fit. An appeal court may interfere only if the statutory power has not been properly exercised. This would be so if, for instance, the court has exercised its statutory power capriciously or was moved by a wrong principle or an incorrect appreciation of the facts, or has not brought its unbiased judgment to bear on the issue, or has not acted for substantial reason.’ It seems to us that the same can be said in relation to the Tax Court, namely that in terms of section 129(2) of the TAA it is the Tax Court – and only the Tax Court – that may:

‘(a) confirm the assessment of “decision”; (b) order the assessment or “decision” to be altered; or (c) refer the assessment back to SARS for further examination and assessment’. The role of an appeal court, whether the High Court or the Supreme Court of Appeal, where a decision of the Tax Court – a specialist court – is taken on appeal, is limited to interfering only if the statutory power of the Tax Court was not properly exercised. This would be the case if, for instance, the Tax Court had exercised its statutory power capriciously or was moved by a wrong principle or an incorrect appreciation of the facts, or had not brought its unbiased judgment to bear on the issue, or had not acted for substantial reason.

For an example of the non-observance of what we might call the specialist court due deference rule, we need look no further than the SCA judgment reported on page 149 of this issue of The Taxpayer, Commissioner for the South African Revenue Service v Big G Restaurants (Pty) Ltd 2019 (3) SA 90 (SCA). When read with the Tax Court judgment of Cloete J in ITC 1905 80 SATC 223, 2017 Taxpayer 187, we respectfully submit that insufficient deference was shown to the reasoned findings of the specialist Tax Court, which we consider to have exercised its statutory power quite properly, resulting in a conclusion that the said findings were reversed by the SCA without sufficient reason. All of this quite apart from being – with great respect, and for the reasons mentioned in our editorial note to the case report on page 149 – quite wrong.

AUGUST 2018 142

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